On February 15, 2002, Examiner Richard B. McLaughlin issued Findings of Fact,
Conclusions
of Law and Order with Accompanying Memorandum in the above-entitled matters wherein
he
concluded that Respondents had not committed any of the alleged unfair labor practices
except as to
an alleged violation of Sec. 111.84(1)(a), Stats., that he found had been committed by
Respondent
University. As to this unfair labor practice, he made a cease and desist order. He dismissed
all of the
remaining unfair labor practice allegations.

On February 27, 2002, Complainant Peshut timely filed a petition with the Wisconsin
Employment Relations Commission seeking review of the Examiner's decision pursuant to
Secs.
111.07(5) and 111.84(4), Stats. The parties thereafter filed written argument in support of
and in
opposition to the petition-the last of which was received April 17, 2002.

To maximize the ability of the parties we serve to utilize the Internet and
computer
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.

Having reviewed the record and being fully advised in the premises, the Commission
makes
and issues the following

ORDER

A. Examiner's Findings of Fact 1-24 are affirmed.

B. Examiner's Conclusions of Law 1-10 are affirmed.

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Dec. No. 29776-G

C. Examiner's Order is affirmed as modified to deny
Respondents' requests for
attorneys
fees and costs.

Given under our hands and seal at the City of Madison, Wisconsin, this
3rd day of January, 2003.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Steven R.
Sorenson, Chairperson

A. Henry Hempe, Commissioner

Paul A. Hahn,
Commissioner

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DEPARTMENT OF EMPLOYMENT RELATIONS

MEMORANDUM ACCOMPANYING ORDER
AFFIRMING EXAMINER'S

FINDINGS OF FACT AND CONCLUSIONS OF
LAW AND AFFIRMING

AND MODIFYING EXAMINER'S
ORDER

Pursuant to our order in State of Wisconsin, Dec. Nos. 29775, 29776 (WERC,
11/99),
although Cases 465 and 466 were consolidated for hearing, the Examiner had the option of
issuing
separate decisions in each Case. He elected to issue the single consolidated decision that is
now
before us on review. Accompanying Complainant Peshut's petition for review is a motion
wherein
she asks that Cases 465 and 466 be severed for purposes of review because the two cases
arise from
different causes of action and because severance would serve administrative efficiency. We
hereby
deny that motion. Inasmuch as Cases 465 and 466 have been consolidated for the purposes of
hearing
and decision before the Examiner and present common or interrelated issues, we are satisfied
that the
interests of all parties continue to be well served by consolidation as is the interest of
administrative
efficiency. However, denial of the motion does not mean that each of the two complaints
will receive
less full consideration.

Alleged Procedural Errors

In State of Wisconsin, Dec. Nos. 29775-C, 29776-C (McLaughlin, 4/01), the
Examiner
denied Peshut's motion for further hearing. In her petition for review, Peshut asserts the
Examiner
erred by doing so because he thereby denied her the opportunity to offer rebuttal testimony.

We have carefully considered this issue and conclude that the Examiner's decision to
end the
presentation of evidence was an appropriate one under all of the circumstances presented.

In State of Wisconsin, Dec. Nos. 29775-E, 29776-E (McLaughlin, 7/01), the
Examiner
deferred ruling on various evidentiary motion made by Peshut. In the decision now before us
on
review, the Examiner did not grant Peshut's motions and she now cites his failure to do so as
procedural error.

We have reviewed the evidentiary matters in question are satisfied that the Examiner
resolved
them in an appropriate manner.

Case 465

The allegations in Case 465 are that Respondent UWM and certain of its employees
committed unfair labor practices as to Peshut. As noted in the preface to our Order, the
Examiner
dismissed all of the allegations in Case 465 with the exception of one of the alleged
violations of Sec.
111.84 (1) (a), Stats.

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On review, Peshut asserts the Examiner erred by concluding that Respondent UWM
had not
committed a unfair labor practice within the meaning of Sec. 111.84(1)(c), Stats., because
Respondent UWM was not hostile toward her lawful concerted activity. In large part, Peshut
takes
issue with the Examiner's view that the hostility evident in the record was personal and
professional
and that this personal/professional conflict adequately explains the actions taken by
Respondent
UWM toward her. In particular, Peshut contends that her relationship with Respondent
Burgess was
a positive one until Burgess learned of Peshut's lawful concerted activity.

The Examiner extensively addressed the issue of hostility in his decision as follows:

The issue thus turns on proof of statutorily proscribed
hostility
by UWM Respondents toward
this exercise of concerted activity. The evidence manifests unmistakable and shared hostility
between
Complainant and Burgess. The evidence also manifests hostility between Complainant and
other
UWM Respondents. The evidence fails, however, to manifest that this hostility is that type
of
hostility regulated by Sec. 111.84(1)(c), Stats., or that it is linked to Complainant's exercise
of
concerted activity.

As preface to examination of this
conclusion, it should be noted that Complainant's arguments
concerning the interpretation of law and contract play no significant role in application of this
subsection. Those assertions bear on the remaining allegations. They are not, however,
helpful or
necessary in the application of this subsection, which focuses on the good faith of UWM
Respondents' response to Complainant's assertion of concerted activity. As Complainant
persuasively contends, the absence of rationale for UWM Respondents' conduct regarding the
evaluation process and the grievance procedure can form the basis for an inference of bad
faith. Here,
however, such inferences are unnecessary. The assertion of pretext for UWM Respondents'
explains
nothing concerning the long history of hostility. The cause and the course of that hostility
are
apparent, and bear no relationship to the type of conduct proscribed by Sec. 111.84(1)(c),
Stats.

The themes for the conflict Complainant
attempts to characterize as retaliatory are evident
well before January of 1998, and well before any exercise of concerted activity on her part.
Those
themes turn on personal and professional issues surrounding the control of the Center.
Romenesko's
testimony vividly highlights tension within the Center preceding Burgess' arrival as Director.
Complainant's and Burgess' views underscore that testimony, differing only on where
responsibility
for the tension should be placed. What were hairline cracks in the Fall of 1996, became
unmistakable
rifts by the Fall of 1997 and fissures by the following Winter and Spring. Those issues are

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manifested in the stormy staff meetings that prompted Kriviskey's
hire. No recourse to anti-union hostility is appropriate to this milieu, as Complainant's
testimony concerning the tension at staff
meetings demonstrates:

And I was at the meetings, but I was disinvolved. It wasn't about
my tasks, they were always
about Ms. Romenesko's tasks and duties. (Tr. at 729)

As Romenesko's testimony establishes, the
focus changed from her to Complainant. That focus
had, however, nothing to do with the assertion of concerted activity. Rather, it turned on
issues of
control and working relationships within the Center. Those issues had a policy element and
a
personal element, but no element involving UWM Respondents' desire to encourage or to
discourage
"membership in any labor organization." The personal and policy-based conflict manifested
in this
time period devolved into the ongoing conflict culminating in this litigation. This conflict
underlies
the April 15 evaluation, and the events that follow it.

This course of events does not, however,
manifest conduct regulated by Sec. 111.84(1)(c),
Stats. Complainant's assertion of pretext provides no assistance in explaining that course of
events.
Significantly, Complainant's assertion of pretext provides no insight into what UWM
Respondents
hoped to gain by the complained of conduct. There is no evidence indicating UWM hoped to
push
Complainant or any other employee toward or away from WSEU or Local 82. No evidence
indicates
UWM Respondents had any reason to favor either or neither entity. Bradbury's letter of
August 26
vented considerable frustration with Complainant's conduct, and is directed to WSEU and
Local 82
representatives. Inferring she was hostile, within the meaning of Sec. 111.84(1)(c),
Stats., to
Complainant's behavior fails to explain why Bradbury took no action on that frustration
beyond
openly publishing it. No such inference is necessary if, as the evidence establishes, she
stated her
good-faith frustration with a course of conduct she found inappropriate. UWM Respondents
did not
follow up on the letter because the letter fully stated her purpose. That purpose was not to
push
Complainant toward or away from WSEU or Local 82. Rather, it was to push events into
what at
least Bradbury perceived as an appropriate dispute resolution process. The accuracy of those
views
is less important to the application of this section than is the good or bad faith with which
she
espoused them. The evidence affords no basis to doubt her good faith.

A similar tension underlies each of
Complainant's attempts to color UWM Respondents'
conduct with anti-union hostility. Complainant disputes the timeliness of Burgess' response
to her
requests for representation, as reflected in

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her memo of May 13. The memo highlights the depth of their
interpersonal conflict, but is less
than convincing as evidence of anti-union hostility. The memo ignores that Complainant
made a
written request for representation placed in Burgess' mailbox. The evidence indicates
Burgess was
not at the Center to receive it, yet Complainant took issue with Burgess' failure to respond
within
forty-eight hours, without regard to when Burgess received the request. Burgess did arrange
a
meeting with Yasaitis, then moved it forward after Complainant objected and Yasaitis stated
he
would be available for an earlier meeting. That these arrangements did not satisfy
Complainant is
evident. However, the fact remains that Burgess twice arranged a meeting with Yasaitis and
Complainant. How this squares with the allegation of anti-union animus is less than evident.
There
is no apparent gain to Burgess in any of this.

Burgess' responses to other requests by Complainant make the inference of
anti-union
hostility untenable. Burgess disagreed with Complainant's request for representation on
April 15, and said so. However, in response to Complainant's persistent requests,
Burgess
contacted Yasaitis. Her openness in expressing disagreement with the request, then
arranging
for representation make it difficult to conclude she was seeking to interfere in Complainant's
relationship with her representative, or to punish her for it. Complainant's January 31
request
to see Keach concerning "the filing of a possible grievance" was addressed not later than
February 3. Consistent in the pattern of delay Complainant points to is her own
dissatisfaction with any response. Absent, however, is convincing evidence of anti-union
animus. Burgess took the requests seriously, and attempted to comply in good faith.

The inference of pretext adds nothing to
understanding Complainant's conflict with Burgess.
As noted above, the themes for that conflict predate any arguable claim to the assertion of
concerted
activity. Kriviskey's appointment as facilitator foreshadowed the conflicts played out through
the
processing of the grievances. Romenesko, Complainant and Burgess commonly perceived a
problem
within the Center, having both personal and policy dimensions. Romenesko and
Complainant initially
agreed with the appointment of an outsider, but that appointment came to pull the
pre-existing
differences with it. Burgess was willing to consider Romenesko's and Complainant's choice
for a
facilitator, but not to permit them any authority approaching a vote in it. Ultimately, the
process
reflected the internal struggle for direction of the Center. Kriviskey came to be seen by
Center
employees' as another of Burgess' attempts to exert control over them and to reconcile them
to
changes within the Center. This dispute grew in intensity with time. Burgess was unwilling
to cede
meaningful control over the Center, and the employees remained unconvinced of the quality
of her
leadership.

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Dec. No. 29776-G

This process reached a watershed in the April 15 evaluation.
By this time, Complainant had
become convinced the struggle within the Center was for nothing less than her personal and
professional survival as an employee. She responded in kind, enlisting the support of Local
82. This
does not, however, transform a personal and professional conflict into a conflict regulated by
Sec. 111.84(1)(c), Stats. The most intense areas of dispute manifest personal and
professional
conflict. The January 23 incident generated considerable ill-will, and is rooted on what
Burgess
perceived as a personal and professional snub. By January 26 that perceived snub was
generating
considerable friction that later surfaced in the evaluation and the written reprimand.

The April 15 evaluation brought the
simmering conflict to a boil. Complainant took the
evaluation as a personal attack. The "DN" rating contrasts starkly to Complainant's prior
ratings.
Elements of the evaluation resemble less a narrow description and evaluation of workplace
behavior
than a personality critique. The May 5 predisciplinary memorandum and the May 6
reprimand
accentuate this theme by including broad character assessments within documents that address
office
behavior. It is, for example, less than apparent what role is served within a reprimand by a
recommendation for an "Employee Assistance Program for use by employees who may be
experiencing personal problems which are affecting their work performance." Complainant's
April
23 response to the evaluation cements an all or nothing conflict into place. The response
rejects the
entire evaluation document, including those portions of it lauding Complainant's work.

Coupling existing conflict with union
representation does not necessarily color that conflict
with anti-union hostility. On this record, none is apparent. Complainant's assertion that
Burgess
actively sought her resignation to further such hostility has no evidentiary support. The
correspondence concerning Complainant's transfer undercuts this assertion. More
illuminating,
however, is the correspondence concerning Complainant's designation as Steward. Yasaitis
advised
Bradbury of the designation on August 6, and asked Bradbury to refrain from assigning cases
to her,
pending further training. Complainant's August 6 letter to Burgess manifests no such
restraint. That
letter, copied to Burgess' supervisors, notifies Burgess of the designation in its first
paragraph, then
castigates Burgess for contractual and statutory violations in the remaining three. The
alleged
violations affect only Complainant. This reflects that the designation was, to Complainant,
an
additional arrow in her quiver of responses to her individual and personal conflict with
Burgess. In
a similar fashion, Complainant's becoming a dues paying member corresponds to the
growing
intensity of her struggle with Burgess. This reflects the palpable pain growing from the
struggle. It
fails, however, to demonstrate any anti-union component.

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That Complainant would enlist the support of WSEU is
understandable. This fails, however, to
establish anti-union hostility on the part of any of UWM Respondents.

With the exception of Bjornstad, there is
no evidence of anti-union hostility warranting
extended discussion. The exception turns on Bjornstad's exit interview with Romenesko.
During
that interview Romenesko understood Bjornstad to articulate a position that it was regrettable
that
Complainant involved Local 82 representatives in the Kriviskey facilitation effort. It is
impossible
to reconstruct that conversation with precision. The Findings of Fact, however, take
Romenesko's
perception as accurate. This reflects Romenesko's credibility as a witness, and is buttressed
by the
fact that Bjornstad could not recall the conversation in sufficient detail to specifically deny it,
beyond
noting it did not sound like something she would say.

This statement is discussed in greater
detail below, but fails to establish anti-union hostility
on Bjornstad's part. It, as the evidence noted above, reflects the tension within the Center.
Bjornstad
knew little of the conflict beyond its existence. On its face, and in the context of the
discussion with
Romenesko, the comment reflects Bjornstad's disappointment that the facilitation effort could
not
diffuse the conflict, and her disappointment that Local 82 took a position adverse to
Kriviskey's
control over the effort. Her means of stating the disappointment has statutory dimensions, as
noted
below. It does not, however, establish anti-union animus.

More specifically, the evidence fails to
demonstrate any basis for the asserted bad faith on
Kriviskey's part. Assuming the statement has the meaning asserted by Complainant, it was
not
pretextual. Rather, it reflects open hostility for WSEU or Local 82. There is, however, no
evidentiary basis to demonstrate a purpose or goal for such hostility on Bjornstad's part. The
evidence is silent on a reason for Bjornstad to favor or disfavor either WSEU or Local 82.
More
significantly, there is evidence establishing good faith on Bjornstad's part. Romenesko and
Complainant treated her as a confidant in January of 1998. Bjornstad acted in the same
capacity in
June of 1998. She was unwilling to testify concerning the substance of the exit interview
prior to
Romenesko's testimony, because she saw that as a confidential matter involving Romenesko.
Her
testimony on the point is, in any event, credible. Bjornstad testified consistently that she had
limited
recall of the conversation. When asked initially about a comment detrimental to
Complainant's
involvement of Local 82, Bjornstad testified that it did not sound like something she would
say.
When informed of Romenesko's view, she declined the simple expedient of denying it.
Rather, she
willingly assumed the accuracy of Romenesko's views, and stated

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openly why she would make such a statement. This is difficult to
reconcile with the assertion of
open, anti-union hostility. It is a simple matter to deny, particularly if one is unconcerned
with the
truth. Bjornstad's openness on the point manifests a good faith disagreement, not the bad
faith
regulated by Sec. 111.84(1)(c), Stats.

Evidence concerning anti-union hostility of
the remaining UWM Respondents does not
warrant extended discussion. That Rayburn returned Complainant's complaint or that Sander
took
the position that Complainant manifested hostility toward UWM Respondents establishes no
more
than disagreement. There is no evidence such disagreement manifests anything other than
the
individual UWM Respondent's good faith opinion of Complainant's positions.

The timeliness of grievance responses by
various UWM Respondents does not establish
persuasive evidence of anti-union hostility. The evidence establishes the timeliness of
responses is
a long-standing, unit-wide problem, not an issue unique to Complainant. In any event,
Section 4/2/8
of the labor agreement addresses the matter by permitting the processing of unanswered
issues further
up the processing chain. Complainant's unwillingness to move the grievances forward
underscores
the depth of her belief regarding her interpretation of the SELRA, but cannot be held against
UWM
Respondents.

From our review of the record, we are satisfied that the Examiner ably and
accurately
addressed the issue of hostility. As reflected in the above-quoted portion of the Examiner's
decision,
the record as a whole establishes that the conflict between Peshut and Burgess predated
Peshut's
concerted activity and that Burgess' responses to the concerted activity do not establish
hostility.
Thus, we have affirmed the Examiner's dismissal of the Sec. 111.84(1)(c) Stats.,
allegation.

On review, Peshut also takes issue with the Examiner's failure to conclude that
Respondent
UWM committed an unfair labor practice within the meaning of Sec. 111.84(1)(a), Stats., by
seeking
attorneys fees and costs in its answer. Peshut contends that such a request has a reasonable
tendency
to interfere with the protected right to file an unfair labor practice complaint with the
Commission-particularly where Respondent UWM knew that such fees and costs are not
available to respondents.
The Examiner did not directly discuss his disposition of this allegation as to Respondent
UWM but
did specifically discuss and reject Peshut's parallel contention against Respondent WSEU.

We reject Peshut's contention that the request for attorneys fees and costs in an
answer
violates Sec. 111.84(1)(a), Stats. As we held in State of Wisconsin, Dec. No. 30124-C
(WERC,
1/03) in response to the same contention, the request for attorneys fees and costs does

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not have a reasonable tendency to interfere with the right to file a complaint because a
reasonable
person knows that such a requests require the approval of a neutral third party (the
Commission
examiner or the Commission) who in turn can only grant the request if authorized by law to
do so.
It is this linkage to the need for a neutral third party's approval that precludes a finding of
interference.

As Peshut points out, we have held that we do not have the authority to grant such
fees and
costs to a respondent. State of Wisconsin, Dec. No. 29177-C (WERC. 5/99). Thus, in our
Order,
we dispose of Respondent UWM's request for fees and costs be denying same.

Case 466

The allegations in Case 466 are that Respondent WSEU and certain of its employees
committed unfair labor practices as to Peshut. As noted in the preface to our Order, the
Examiner
dismissed all of the Case 466 allegations.

On review, Peshut argues that the Examiner erred when he concluded that
Respondent
WSEU
did not interfere with her Sec. 111.83(1), Stats. right to present grievances to Respondent
UWM
through representatives of her own choosing and thereby violated Sec. 111.84(2)(a),
Stats.

Peshut's arguments on review mischaracterize both the law and the Examiner's
decision.
Peshut does indeed have a statutory right under Sec. 111.83(1), Stats. to present grievances
to her
employer through representatives of her own choosing. However, as we reaffirmed in State
of
Wisconsin, Dec. No. 30124-D (WERC. 1/03):

. . . there is a distinction between the rights, if any, of an
employee under a contractual grievance
procedure and the State employee's statutorily guaranteed right to present a grievance to the
employer under Sec. 111.83 (1), Stats.

Thus, Sec. 111.83(1), Stats. does not give an employee the right to use a contractually
bargained
grievance procedure. It is a contractually bargained procedure that Peshut here asserts a Sec.
111.83(1), Stats., right to use. Thus, when Respondent WSEU refused to allow Peshut to
proceed
under the contractually bargained grievance procedure through a representative of her own
choosing,
it did not interfere with her rights under Sec. 111.83(1), Stats.

Peshut then argues that if the Commission continues to conclude that there is a
distinction
between a contractually established grievance procedure and Sec. 111.83(1), Stats. rights, the
Examiner nonetheless erred when he concluded that she had no contractual right to a
representative
of her own choosing. In support of her argument, Peshut cites various portions of the
grievance
procedure contained in Article IV of the 1997-1999 contract.

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Peshut is correct when she argues that there are portions of Article IV that on their
face can
reasonably be interpreted as giving an employee the right to be represented by a
representative of the
employee's choosing. For instance, she cites that portion of Article IV which states:

Within twenty-one (21) calendar days of receipt of the written
grievance, the designated agency
representative(s) will schedule a hearing with the employe(s) and his/her representative(s) and
a
representative of Council 24 (as Council 24 may elect) . . .

However, Article IV of the 1997-1999 contract must be viewed in the context of
record
evidence that Respondent WSEU and the State agreed that the following language from prior
contracts would not be included in the 1997-1999 agreement:

Individual employees or groups of employees shall have the right
to present grievances in person
or through representatives of their own choosing at any step of the grievance procedure . . .

This bargaining history satisfies us that Peshut's proposed interpretation of Article IV
is not
correct. Thus, we reject her claim that the Examiner erred in this regard.

Peshut next argues on review that the Examiner erred when he found that no
violation
of Sec.
111.84(2)(b), Stats., 1/ was committed "by inducing the grievant Yasaitis to renounce Ms.
Peshut as
his chosen representative."

1/ Section 111.84(2)(b), Stats.,
provides:

(2) It is
unfair practice for an employee individually or in concert with others:

. . .

(b) To coerce, intimidate or induce any officer
or agent of the employer to interfere with any of the employer's
employees in the enjoyment of their legal rights including those guaranteed under s.111.82 or
to engage in any
practice with regard to its employees which would constitute an unfair labor practice if
undertaken by the officer
or agent on the officer's or agent's own initiative.

As to this allegation, the Examiner stated:

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This subsection focuses on Union
Respondents' coercion of employer representatives to
take action on the Union Respondents' behalf. No such conduct has been proven regarding
Complainant's removal as Steward in the Yasaitis grievance or any other transaction
questioned
by this litigation. Union Respondents acted consistently toward Complainant based on its
own
internal policies. Complainant's disagreement with those policies falls short of establishing
coercion within the meaning of this section.

That UWM
Respondents could not remove Complainant as Steward has no bearing on
whether Union Respondents may do so. If it did, Yasaitis' August 6 and September 9
requests
of Bradbury to hold cases back from Complainant as Steward would be evidence of coercion.
Complainant acknowledges that Union Respondents are not responsible for the "freezing" of
the
grievances at Step Two. The issue on the processing of those grievances turns on the
interpretation of the labor agreement and Sec. 111.83(1), Stats. There is, in sum, no proven
violation of Sec. 111.84(2)(b), Stats.

Peshut argues on review that the Examiner did not address her
theory that Respondent
WSEU's conduct violated Sec. 111.84(2)(b), Stats., because it engaged in conduct which
would
be illegal if undertaken by the Respondent UWM. As reflected in the above-quoted portion
of the
Examiner's decision, Peshut is incorrect for the Examiner directly stated:

That UWM Respondents could not remove
Complainant as Steward has no bearing on
whether Union Respondents may do so.

Thus, it is clear that the Examiner understood Peshut's theory in this
regard but found it to have
no merit. As the Examiner correctly concluded Sec. 111.84(2)(b), Stats., prohibits certain
union
conduct that coerces the employer to act on the union's behalf. Here, there was neither
relevant
conduct by Respondent UWM as to the Yasaitis matter nor an effort by Respondent WSEU
to
coerce Respondent UWM to engage in such conduct. Thus, the Examiner correctly
dismissed this
allegation.

Lastly, Peshut contends on review that the Examiner erred when
concluding that
Respondent WSEU did not commit an unfair labor practice within the meaning of
Sec. 111.84(2)(a), Stats., by requesting attorneys fees and costs in its answer to the
complaint.
We affirm the Examiner's rejection of this claim for the reasons above recited as to the
parallel
allegation made against Respondent UWM under Sec. 111.84 (1)(a),
Stats.

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Dec. No. 29776-G

SUMMARY

Given all of the foregoing, we have affirmed the Examiner in all
respects except for the
modification of his Order to reflect rejection of the requests for attorneys fees and
costs.